Caruso Electric Corp.

CARUSO ELECTRIC CORP. 519 Caruso Electric Corporation and International Brotherhood of Electrical Workers, Local Union #86. Cases 3–CA–19704 and 3–CA–19777 September 29, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND HURTGEN On March 21, 1997, Administrative Law Judge Judith Ann Dowd issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order which is modified to reflect the amended remedy below.2 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We affirm the judge’s finding that the General Counsel has met his burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), with respect to the Respondent’s refusal to hire applicants Robert Swetman, Randall Smith, Darryl Follette, and William Ruscher Jr. Specifically, we find that the record establishes that the Respondent was hiring at the time they applied for employment; the applicants had experience and train- ing relevant to the announced or generally known requirements of the position for hire (electricians); and that antiunion animus contributed to the Respondent’s decision not to hire them. See FES, 331 NLRB No. 20, slip op. at 4 (2000). We also agree with the judge, for the reasons stated by her, that the Respondent failed to satisfy its Wright Line bur- den of showing that it would not have hired Swetman, Smith, Follette, and Ruscher Jr. even in the absence of their union activity. Contrary to our dissenting colleague, we agree with the judge that the General Counsel satisfied his burden of establishing that the Re- spondent’s hiring decisions during the relevant period were tainted by antiunion animus. The judge credited employee Michael Mawn’s testimony that the Respondent’s president, Jerry Caruso, directed him to alter the date on his employment application from January 8, 1996, to October 8, 1995, because, in September and October 1995, the Re- spondent “had union people coming by filling out applications.” The judge also found that the date on employee Wayne Gates’ application was altered while it was in the Respondent’s possession. The Respon- dent has offered no reason for altering the documents. Caruso’s in- struction to Mawn to alter the date on his application was directly linked to the Union. With respect to Gates’ application, while there is no direct link to the Union, it follows the same pattern and therefore it can be inferred, in the absence of any other explanation, that the altera- tion was made for the same reason. The falsification of these dates in response to the Union’s campaign is sufficient to establish animus. See Pan American Electric, 328 NLRB 54 (1999). See also Ramada Inn, 172 NLRB 248 (1968). AMENDED REMEDY Having found that the Respondent engaged in unfair la- bor practices in violation of Section 8(a)(1) and (3) of the Act, the Respondent shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. Having found that the Respondent unlawfully refused to hire Robert Swet- man, Randall Smith, Darryl Follette, and William Ruscher Jr., the Respondent shall offer them employment to the positions for which they have applied and are qualified or, if those positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges they might have enjoyed, and make them whole for any loss of earnings and other bene- fits computed on a quarterly basis as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), and shall be re- duced by net interim earnings, with interest computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).3 ORDER The National Labor Relations Board adopts the recom- mended Order of the administrative law judge as modified below and orders that the Respondent, Caruso Electric Corporation, Rochester, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). “(a) Within 14 days from the date of this Order, offer Robert Swetman, Randall Smith, Darryl Follette, and Wil- liam Ruscher Jr. employment in the positions for which they applied or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled absence the discrimination against them.” 2. Insert the following as paragraphs 2(b) and (c) and reletter the subsequent paragraphs. “(b) Make Robert Swetman, Randall Smith, Darryl Fol- lette, and William Ruscher Jr. whole for any loss of earn- ings and other benefits suffered as a result of the discrimi- nation against them in the manner set forth in the amended remedy section of this decision. “(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire Robert Swetman, Randall Smith, Darryl Follette, and Wil- liam Ruscher Jr., and within 3 days thereafter notify the employees in writing that this has been done and that the 3 Because the number of applicants exceeds the number of available jobs, it shall be determined in compliance which of the applicants would have been hired for the openings. FES, supra. 332 NLRB No. 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520 unlawful refusals to hire will not be held against them in any way.” 3. Substitute the attached notice for that of the adminis- trative law judge. MEMBER HURTGEN, dissenting. Under the test set forth in Wright Line,1 the General Counsel must initially establish, inter alia, the element of animus. I find that the General Counsel has not estab- lished the element of animus, and, therefore, I would dis- miss the complaint. The testimony establishes a backdating of employment applications. More specifically, the credited evidence shows that Respondent Agent Jerry Caruso offered Mi- chael Mawn a job on January 8, 1996. When Mawn sought to write that date on his application, Respondent told him to write October 8, 1995. Caruso explained to Mawn that, in September and October, there had been “union people coming in and filling out applications.” The judge found that this incident shows animus. In my view, it does not do so. The judge conceded that “there is no way of ascertaining the exact details of [Caruso’s] plan.” Indeed the evidence shows more con- fusion than a plan. Mawn was not a union applicant. Thus, the backdating of Mawn’s application to October 8 would seemingly have the effect of showing that a non- union applicant was hired at a time when union appli- cants were rejected. Surely, Respondent would not want to create that impression. In light of the foregoing, the judge was left to specula- tion. She guessed that Caruso may have believed that Mawn’s application, which shows a well-qualified non- union electrician, would support Respondent’s position that it declined to hire a number of union applicants be- cause nonunion applicants were more experienced. But, as noted, this was pure speculation. There is no showing that Mawn was more qualified than the union applicants. The judge also found animus in regard to the treatment of Gates’ application. Gates filed an application on Sep- tember 25, and he noted that date on the first page of the application form. Thereafter, someone changed the date from “9–25” to “8–25.” Assuming arguendo that Caruso made the change, it is far from clear why he would do so. Conceivably, Respondent might wish to show that it filled the positions before September 19, the date on which the union applicants began to appear. However, it was not, and is not, Respondent’s contention that posi- tions were filled before September 19. Again, we do not know why Respondent would make such a change. 1 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982). As noted above, the judge could not explain what Caruso had in mind.2 The judge suggested at one point that “it may be that Caruso’s plan was simply ill con- ceived.” Notwithstanding this uncertainty, the judge based her finding of animus on these slender reeds. I would let the record speak for itself. There is simply no way of knowing, on this record, why the changes were made. The fact that Caruso referred at one point to the union applicants does not establish the reason for the changes. As noted, the changes are not consistent with a plan to mask an antiunion motive. The cases relied on by the majority are clearly distin- guishable. In Pan American Electric, 328 NLRB 57 (1999), there were numerous violations of Section 8(a)(1), showing antiunion animus on the part of the re- spondent. These violations included the statement by the project superintendent to applicants to backdate their applications because he had “told [union guys] that I am not taking any more applications.” In Ramada Inn, 172 NLRB 248 (1968), the respondent’s manager told an applicant to backdate her application because “some members of the Union had filled out an application form.” Thus, in both cases, there was a clear deliberate plan to make it falsely appear that applications were no longer being taken or that nonunion applications had been filed before the union applications. As discussed above, the plan in the instant case is far from clear. My colleagues say that the backdating in the instant case is not simply relevant to the issue of animus but is “sufficient to establish animus.” For the reasons dis- cussed above, I disagree. Since animus has not been shown, the General Counsel has not established a prima facie case.3 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection 2 Caruso did not testify because of a medical condition. 3 I do not condone the alteration of documents. I simply cannot say, on this record, that the alterations show an antiunion animus. CARUSO ELECTRIC CORP. 521 To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to hire Robert Swetman, Ran- dall Smith, Darryl Follette, and William Ruscher Jr. be- cause they engaged in union or other protected activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Robert Swetman, Randall Smith, Darryl Follette, and William Ruscher Jr. employment in the positions for which they applied or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled absent the discrimination against them. WE WILL make Robert Swetman, Randall Smith, Darryl Follette, and William Ruscher Jr. whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to hire Robert Swetman, Randall Smith, Darryl Follette, and William Ruscher Jr., and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the refusals to hire will not be used against them in any way. CARUSO ELECTRIC CORPORATION Ron Scott, Esq., for the General Counsel. David W. Lippitt, Esq., of Rochester, New York, for the Re- spondent. DECISION STATEMENT OF THE CASE JUDITH ANN DOWD, Administrative Law Judge. This case was heard in Rochester, New York, on October 15 and 16, 1996. Charges and amended charges were filed by the Interna- tional Brotherhood of Electrical Workers, Local Union #86 (the Union) on October 25 and December 7, 1995, and May 22 and 23, 1996. On May 24, 1996, the Regional Director for Region 3 of the National Labor Relations Board (the Board) issued an order consolidating cases, consolidated complaint and notice of hearing (complaint). The complaint alleges that Caruso Elec- tric Corporation (the Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by discrimi- natorily refusing to consider for employment and refusing to hire the following employees between September 19 and De- cember 31, 1995: Robert Swetman Darryl Follette Keith Huffman William Ruscher Jr. James Lembach Randall Smith Thomas Burke David Young The Respondent filed an answer on June 4, 1996, denying the commission of any unfair labor practices and raising an af- firmative defense that certain allegations in the complaint are untimely filed. Prior to the commencement of the hearing, the General Counsel moved to withdraw paragraph six of the complaint and his unopposed motion was granted. During the hearing, the parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence. On the entire record, includ- ing my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a corporation with an office and place of busi- ness in Rochester, New York, where it has been engaged in the business of residential, commercial, and industrial electrical contracting. Annually, Respondent purchases and receives at its Rochester facility, goods valued in excess of $50,000 di- rectly from points outside the State of New York. The com- plaint alleges, the answer admits, and I find that at all material times, Respondent has been engaged in commerce with in the meaning of Section 2(2), (6), and (7) of the Act. At all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act.1 II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is an electrical contractor working in new and remodeled buildings. At the time of the hearing the Respon- dent employed approximately thirty-one full-time employees, all of whom were electricians. At the time of the events de- scribed below, the Respondent employed about forty electri- cians. The Respondent’s employee complement fluctuates with the demand for electrical work. Respondent is owned by two brothers, Jerold (Jerry) and Robert Caruso. Jerry Caruso is the president and Robert is the vice president of Respondent. Dur- ing all relevant times and until March 18, 1996, Jerry Caruso was in charge of the day to day management of Respondent, including all hiring and firing. Robert Caruso was the project manager for all of Respondent’s construction jobs. On March 18, 1996, Jerry Caruso suffered a heart attack and Robert Caruso assumed full control of Respondent’s business. Jerry Caruso did not appear at the hearing, citing medical advice that testifying could have adverse health consequences for him. B. The General Counsel’s Prima Facie Case Section 8(a)(3) of the Act makes it an unfair labor practice to discriminate in regard to hiring employees “to encourage or discourage membership in any labor organization.” It is well settled that applicants for employment are employees within the meaning of the Act. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185–186 (1941). It is also now settled that applicants for 1 Respondent orally amended its answer and so admitted at the hear- ing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522 employment who are also union organizers retain their status as statutory employees. NLRB v. Town & Country Electric, 116 S.Ct. 450 (1995). An employer violates Section 8(a)(3) of the Act if it refuses to hire an applicant for employment because the employee joined or assisted a union and engaged in concerted activities, in order to discourage employees from engaging in protected activities. Eldeco, Inc., 321 NLRB 857 (1996); Fluor Daniel, 304 NLRB 970 (1991). In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Board enunciated the test to determine employer motivation in cases of alleged discrimination. First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a “motivating factor” in the employer’s action. The burden then shifts to the employer to demonstrate that the same action would have been taken notwith- standing the protected conduct. Fluor Daniel, Inc., supra. 1. Knowledge During the period from September 19 to December 5, 1995, the Union sent the eight employees named in the complaint to apply for jobs as electricians with the Respondent. These appli- cants were instructed to acknowledge their ties to the Union and to accept jobs if they were offered. Of the eight alleged discriminatees, only Swetman and Follette testified at the hearing. Swetman’s testimony bearing on the subject of knowledge shows that he and certain other alleged discriminatees wore clothing with union insignia when they ap- plied for work with the Respondent. Follette testified that he and three other union applicants—Randall Smith, William Ruscher Jr., and Thomas Burke—came to Respondent’s office on No- vember 2, 1995, and applied as a group. Smith, Ruscher and Follette all stated on their applications that they were active in union organizing. There was no evidence, however, that Jerry Caruso personally observed any of the alleged discriminatees or that Respondent’s office staff told Caruso about the applicants’ union insignia or association with union organizers. As noted above, Jerry Caruso, who actually did all of the hiring during the relevant period, did not testify. Under these circumstances, the only clear evidence that Respondent had knowledge of the al- leged discriminatees’ association with the Union is the informa- tion contained in their employment applications. The applications of five of the alleged discriminatees show that they were paid or voluntary union organizers. David Young and Robert Swetman indicated that they were currently employed by the Union as organizers. Randall Smith, William Ruscher Jr., and Darryl Follette listed “union organizer” under additional relevant information. The applications of Thomas Burke and Keith Huffman are devoid of any overt reference to affiliation with, or membership in, the Union. However, Burke listed prior employment with Billiter Electric and Huffman acknowledged that he had three years of training in the Union’s apprenticeship program. Respondent’s witness, Robert Caruso, admitted that Billiter Electric was well known as a union company and that that Respondent would assume electricians who had worked there would remain union members. Robert Caruso also testified that the Respondent would assume that an employee who apprenticed with the Union would remain a union member for life. The appli- cation of James Lembach is devoid of any information that would identify him as a union member, any history of employment with known union companies, or any training in a union apprentice- ship program. As discussed above, the fact that Lembach applied at the same time as Swetman and may have worn a union jacket is insufficient to demonstrate knowledge, without a further show- ing that such information was conveyed to Jerry Caruso. I find that the General Counsel established knowledge with re- spect to all of the alleged discriminatees except James Lembach. I recommend that the portion of the complaint alleging that the Respondent discriminatorily refused to hire Lembach be dis- missed. 2. Animus In order to establish union animus the General Counsel elicited testimony from employees Michael Mawn and Wayne Gates and introduced their employment applications into evidence. Mawn testified that he filed an employment application with the Re- spondent on December 20,1995, and that he was called back to talk to Jerry Caruso on January 8, 1996, at which time Caruso offered him employment. Mawn stated that during the interview, Caruso noticed that the front of the employee’s application was undated and handed it to him to fill in the date. According to Mawn, he began writing that day’s date, but after he put down the numbers 1 and 8, Caruso stopped him and told him to alter the figure 1 to a 10, and to write the date October 8, 1995, on the front of the application. Mawn testified that Caruso told him that in September and early October 1995, the Respondent had “had union people coming by filling out applications.” Mawn’s appli- cation contains no reference to the Union, to union apprentice- ship, or employment with a known union contractor. The date at the top of the first page of Mawn’s application shows a peculiarly elongated 0, a fact which is consistent with Mawn’s testimony. Gates testified that he filed an application with the Respondent on September 25, 1995, and that he wrote the date September 25, 1995, on the first page of the application form. When the Gen- eral Counsel showed Gates a copy of his application, Gates iden- tified it and testified that he did not write the date on the front page of the document which now shows August 25, 1995. The date at the top of the first page of Gates’ application shows traces of a figure 9 in the same position where the figure 8 now appears. Respondent contends that Mawn was not a credible witness. Contrary to Respondent’s contention, Mawn appeared to be quite credible. He exhibited some initial confusion as to the dates he came to Respondent’s office but I am satisfied that his memory of his conversation with Caruso was clear and reliable. I also perceive no compelling reason why Mawn would fabricate the date change incident. Respondent also contends that Caruso had no reason to alter the dates on the front of Mawn’s and Gates’ applications because the dates as altered do not help Respondent’s position. Specifi- cally, Respondent argues that the change of date from January to October on Mawn’s application would have the negative impact on Respondent of showing an apparently nonunion applicant who was hired at a time when a number of avowed union adherents were not. Similarly, with respect to Gates’ application, Respon- dent argues that the apparent date change from September to CARUSO ELECTRIC CORP. 523 August would not help Respondent because the alleged discrimi- natees in the case did not begin to file applications until Septem- ber 19, 1995. Respondent also argues that Caruso would have altered the date on the last page of the applications as well as the first, if he intended to deceive Board agents who were investigat- ing the allegations of this complaint. Since Jerry Caruso was not available to testify, there is no way of ascertaining the exact details of his plan. It may be that Caruso believed that Mawn’s application, which shows a well qualified but apparently nonunion electrician, would support Respondent’s position that it declined to hire a number of union applicants because the more experienced candidates happened to be nonun- ion employees. With respect to the inconsistent dates on the first and last pages of the altered applications, Caruso may have in- tended to remove the last page and substitute an undated copy.2 It may also be that Caruso’s plan simply was ill conceived. In any event, the credited evidence shows that Caruso was responsi- ble for the date alteration on Mawn’s application and that the date on Gates’ application was altered during a time when it was in the exclusive possession of the Respondent. The credited evi- dence further shows that Caruso essentially told Mawn that he wanted the date changed on the employee’s application because he hoped to manipulate Respondent’s statistics concerning the hiring of union and nonunion employees. I find this evidence sufficient to show that Respondent’s hiring decisions during the relevant period were tainted by union ani- mus. The burden therefore shifted to the Respondent to show that it refused to hire the seven remaining alleged discriminatees for nondiscriminatory reasons. 3. Respondent’s rebuttal evidence Respondent contends, inter alia, that although it declined to hire the alleged discriminatees, it did not do so for antiunion reasons, as demonstrated by the fact that it hired other employees who had union backgrounds similar to those of some of the al- leged discriminatees. The record evidence supports the Respon- dent’s contention to the extent that of the approximately eleven employees hired during the relevant period, at least three had admitted ties to the Union. The evidence shows that Respondent hired Theodore Kowalczyk, whose application reflects employ- ment with known union contractor Gonzalez Electric; Craig Roberston, who completed the Union’s 4-year apprenticeship program; and Anthony Reale, who had 5 years of employment with known union contractor Billiter Electric, a 22-year associa- tion with the Union, and 4 years of teaching in the Union’s ap- prentice program. This evidence rebuts the presumption of dis- crimination, at least with respect to alleged discriminatees Keith Huffman and Thomas Burke, whose only association with the Union was employment by a known union contractor or training in the Union’s apprentice program. Indeed, the applications of Kowalczyk and Robertson, both of whom were hired by the Re- spondent, are essentially indistinguishable with respect to union background from the applications of Keith Huffman and Thomas Burke, who allegedly were refused employment because of their association with the Union. Moreover, successful applicant An- thony Reale’s application shows a much closer association with the Union than either alleged discriminatees Huffman or Burke. 2 I note that four of the application forms submitted by employees who were hired by the Respondent have no signature or date on the last page. I therefore find that the Respondent rebutted the General Counsel’s prima facie case with respect to alleged discriminatees Keith Huffman and Thomas Burke. I recommend that the com- plaint be dismissed with respect to Huffman and Burke.3 The remaining five alleged discriminatees are Robert Swet- man, Darryl Follette, William Ruscher Jr., Randall Smith, and David Young. As noted above, all of these employees stated on their applications that they were union organizers. Respondent’s evidence showing that it hired employees who had a history of association with the Union, employment with a known union contractor, or training in a union apprenticeship program is insuf- ficient to rebut the presumption of discrimination with respect to these admitted union organizers. An employer may be willing to hire employees who have had even an extensive union back- ground, but still discriminate against employees who declare that they are organizers. Respondent contends that it declined to hire Swetman because of inconsistencies on his various employment applications. With respect to the remaining alleged discriminatees, Respondent con- tends that during the 30-day period each of their applications remained open, other employees, who acknowledged no associa- tion with the Union, were hired because they had better qualifica- tions.4 Robert Swetman—Respondent contends that it refused to hire Swetman because he gave inconsistent answers to the question on the application form inquiring whether the applicant had ever been convicted of a felony. The record evidence shows that on an application filed prior to September 19, Swetman checked the “no” box, but on his September 19 application, Swetman marked the “yes” box. Swetman responded “no” to the felony conviction question on his October 10 and December 5 applications. The Respondent elicited testimony from Robert Caruso indicating that Respondent’s general practice is to review all prior employ- ment applications filed by applicants, to check for consistency. Caruso stated that inconsistent answers with respect to the felony conviction question would be considered very serious. Even assuming arguendo, that Respondent has a general prac- tice of reviewing every previous application filed by the em- ployee to check for inconsistencies, there is no evidence concern- ing when that practice began, whether Jerry Caruso followed that practice, or, more importantly, whether Jerry Caruso relied upon Swetman’s inconsistent answers as a basis for failing to hire him. Respondent also fails to explain why it places such importance on inconsistent answers, particularly in light of the fact that it is 3 I find it unnecessary to rule on the Respondent’s contention that the complaint was untimely filed under Sec. 10 (b) of the Act with respect to Huffman and Lembach, since I have recommended dismissal of the complaint allegations regarding them on other grounds. If the Board declines to adopt these recommendations, I would find that the Re- spondent’s 10(b) argument is without merit for the reasons stated in the brief for the General Counsel. 4 Respondent had a written policy of holding applications open for no more than 30 days. After that time the employee was required to file a new application. In his brief, the General Counsel does not dis- pute that the Respondent applied such a policy and does not allege that it was discriminatory. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524 relatively easy to check a wrong box in a series of “yes” and “no” answers. Respondent does not contend that it checks prior applications only for inconsistent answers to the felony convic- tion question. Apparently, any inconsistency, even with respect to a relatively innocuous question such as whether the employee is currently on layoff status, would be of concern to the Respon- dent. This policy concerning inconsistent answers contrasts sharply with Respondent’s willingness to overlook other flaws in employee applications, such as incomplete answers to employ- ment history and failure to sign or date the last page of the appli- cation form. Swetman is a highly qualified electrician who holds a master’s license and had 15 years’ experience as an electrician at the time he filed the applications at issue here. With the possible excep- tion of Reale, whose employment history on his application is incomplete, none of the applicants hired by the Respondent dur- ing the period relevant to the complaint had as much electrical work experience as Swetman. Robert Caruso testified that the Respondent considers experience to be a very important factor in making hiring decisions. Moreover, in its brief, Respondent argues that it made a number of hiring choices by selecting the most experienced applicant. In short, the Respondent allegedly rejected a thoroughly experienced electrician for work simply because he checked a wrong box on one of his various applica- tions. At the very least, it is reasonable to assume that if Jerry Caruso was actually concerned about Swetman’s inconsistent answers to the felony conviction question, he would have called Swetman in and asked him to explain his answers. Accordingly, I find that Respondent’s stated reason for failing to interview or hire Swetman is pretetual.5 Smith, Ruscher, and Follette—Randall Smith, William Ruscher Jr., and Darryl Follette all filed applications on Novem- ber 2, 1995. During the 30-day period the applications of Smith, Ruscher, and Follette were active, the Respondent hired Anthony Reale, Luis Alayon, Simon Kirkland, and James Banker. Re- spondent contends that all of the employees it hired while the applications of the three voluntary organizers were pending had more electrical experience. The evidence shows that Randall Smith and William Ruscher each had about 2 years’ experience as electricians. Darryl Follette had approximately 1-1/2 years’ experience. Turning to the applications of the employees Respondent hired, Anthony Reale had substantial electrical experience and taught in the Union’s apprentice program. More importantly, Reale’s application also shows that he had previously worked for the Respondent as a supervisor. Luis Alayon’s application, on the other hand, shows that he had no previous electrical work experience. Simon Kirkland’s application shows a total of eight years’ experience in electrical maintenance and electrical work. James Banker had been employed for about 1 year as an electri- cian at the time that he was hired by Respondent and his previous experience had been 2 years as the owner of a home improve- ment company and 6 years’ experience in carpentry and electrical work. 5 On November 27, 1996, counsel for the General Counsel filed a notice of motion and motion to reopen the record and statement in support thereof. On December 4, counsel for the Respondent filed a statement in opposition. The grounds for the motion to reopen are that Robert Swetman was not asked during the course of the hearing whether or not he had been convicted of a felony. The motion asserts that if the question had been asked, Swetman would have denied any such conviction. The motion to reopen the record is denied. Respondent does not contend in its brief that Swetman was actually convicted of a felony, it merely asserts that Swetman gave inconsistent answers to this question on his various applications. The inconsistent answers are evident from the face of the applications themselves. I therefore find it unnecessary to reopen the record for the purpose of taking further testimony, since Swetman’s proffered denial of any felony conviction is irrelevant to the issues in this case. Hirees Reale and Kirkland had significantly more electrical experience than Smith, Ruscher, or Follette. I therefore find that the decision to hire Reale and Kirkland, rather than any of the union organizers, was not discriminatorily motivated. Alayon was hired although he had no previous electrical ex- perience or training. Respondent contends that it hired Alayon for an entry level position because it preferred to hire totally in- experienced employees for such positions. Respondent offered no evidence to suggest that it was hiring for particular positions with different skill levels. Thus, the Respondent offered no job de- scriptions or list of duties that coincided with any of the jobs it filled. However, even assuming, arguendo, that the job for which Alayon was hired was an entry level position, none of the three union organizers were so experienced that they could reasonably considered overqualified for an entry level position. There is also no reason to believe that the applicants would not have accepted an entry level job if it had been offered. Moreover, Respondent’s contention that it preferred to hire totally inexperienced employ- ees for entry level jobs contradicts its other stated policy of choosing experienced employees over inexperienced. James Banker allegedly was hired because he was more ex- perienced than Smith, Ruscher, or Follette. Banker’s application shows that although he had a longer employment history than any of the three union organizers, he had only been working as an electrician for 1 year and his other experience was more general- ized. Smith, Ruscher, and Follette had worked exclusively as electricians. Accordingly, their more specialized, if less exten- sive experience, was at least comparable to that of Banker. I find that the Respondent discriminated against Smith, Ruscher, and Follette by failing to interview or hire these em- ployees because they engaged in union organizing activities. David Young—Young applied for work with the Respondent on December 5, 1995. Young’s application shows approximately 6 years’ experience as an electrician, 3 of them as an electrical foreman. Young also is a licensed master electrician. For the 3 years immediately preceding his application, Young was em- ployed as an organizer for the Union. After Young filed his application with the Respondent, the lat- ter hired William Schell. The Respondent’s stated reason for hiring Schell rather than Young is that Schell was already work- ing for the Respondent as an independent contractor and his work was well known to the Respondent. Schell apparently did not file an application with Respondent, so there is no evidence reflecting on his experience and background. Since current employment with the Respondent is an objective basis for preferring Schell over Young, I find that there are no grounds for finding that the CARUSO ELECTRIC CORP. 525 Respondent discriminated against Young by refusing to interview or hire him.6 CONCLUSIONS OF LAW 1. Respondent Caruso Electric Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act. 2. International Brotherhood of Electrical Workers, Local Un- ion #86 is a labor organization within the meaning of Section 2(5) of the Act. 3. Between the dates of September 19 and December 31, 1995, Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire employment applicants Robert Swetman, Randall Smith, William Ruscher Jr., and Darryl Follette because they engaged in union activities. 4. Except as found above, the Respondent did not engage in any of the unfair labor practices set forth in the complaint. REMEDY Having found that the Respondent engaged in certain unfair labor practices, I recommend that the Respondent be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having violated Section 8(a)(3) and (1) of the Act by refusing to hire certain employees for discriminatory rea- sons, it is recommended that they be offered immediate employ- ment in the positions for which they have applied and are quali- fied, to the extent vacancies exist, and they shall be made whole for any earnings lost by reason of the discrimination against them, from the date of the refusal to hire to the date of a bona fide offer of employment. As a caveat, however, it is noted that the make-whole remedy is not to exceed the earnings appurtenant to the vacancy actually filled by the Respondent on the date of dis- crimination. Thus, it is recommended that, where multiple dis- crimination findings derive from a single job, the status quo ante shall be restored limiting the individual backpay entitlements on a proportionate basis. Moreover, in all instances, sums due shall be computed on a quarterly basis as prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), and shall be reduced by net interim earnings, with interest computed as specified in New Horizons for the Retarded, 283 NLRB 1173 (1987). All rein- statement and backpay recommendations are subject to the pro- cedures discussed in Dean General Contractors, 285 NLRB 573 (1988), and Haberman Construction Co., 236 NLRB 79 (1978). On these findings of fact and conclusion of law and on the en- tire record, I issue the following recommended7 6 On November 22, 1996, counsel for the Respondent filed a notice of motion to correct transcript which was not opposed by counsel for the General Counsel. The motion is granted except as follows: Re- spondent’s item 5, which seeks to correct p. 20, L. 21 by changing the words “for a” to “the” is denied. The words “for a” should be corrected to “of a.” Respondent’s item 9 is granted and p. 144, L. 5 is corrected as moved and it is further corrected to add the word “it” after the word “that.” Respondent’s item 12, seeking to correct p. 146 should properly refer to p. 164, and is granted as to p. 164, L. 19. 7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ORDER The Respondent, Caruso Electric Corporation, Rochester, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging union activity by refusing to hire employees because they engaged in union or other protected concerted ac- tivities. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Within 14 days from the date of this Order, offer Robert Swetman, Randall Smith, Darryl Follette, and William Ruscher Jr. employment for the type of work for which they applied and qualify or, if nonexistent, to substantially equivalent positions, and make whole these employees for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest, in the manner set forth in the remedy section of the decision. (b) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back-pay due under the terms of this Order. (c) Within 14 days after service by the Region, post at its facil- ity in Rochester, New York copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Re- spondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be take by the Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 25, 1995. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the ResRespondent had take to comply. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”